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    DEPARTMENT OF DEFENSE 
 DEFENSE OFFICE OF HEARINGS AND APPEALS 
In the matter of: ) 
) 
)       ISCR Case No. 15-04128 
) 
) 
Applicant for Security Clearance ) 
Appearances 
For Government: Tara R. Karoian, Esquire, Department Counsel 
For Applicant: Pro se 
March 16, 2017 
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Decision 
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GOLDSTEIN, Jennifer I., Administrative Judge: 
On September 2, 2014, Applicant submitted his Electronic Questionnaires for 
Investigations Processing (e-QIP). On December 8, 2015, the Department of Defense 
Consolidated Adjudications Facility (DODCAF) issued Applicant a Statement of 
Reasons (SOR) detailing security concerns under Guideline E (Personal Conduct). The 
action was taken under Executive Order 10865, Safeguarding Classified Information 
Within Industry (February 20, 1960), as amended; Department of Defense Directive 
5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 
1992), as amended (Directive); and the adjudicative guidelines (AG) effective within the 
Department of Defense on September 1, 2006.  
Applicant answered the SOR in writing on January 6, 2016. Applicant requested 
his case be decided on the written record in lieu of a hearing.  
Department Counsel submitted six Items in support of the SOR allegations. Item 
6 is inadmissible. It will not be considered or cited as evidence in this case. It is the 
 
 
 
 
 
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summary of an unsworn interview of Applicant conducted by an interviewer from the 
Office of Personnel Management in January 2015. Applicant did not adopt it as his own 
statement, or otherwise certify it to be accurate. Under Directive ¶ E3.1.20, this Report 
of Investigation summary is inadmissible in the absence of an authenticating witness. In 
light of Applicant’s admissions, it is also cumulative. 
 
A complete copy of the file of relevant material (FORM), consisting of Items 1 to 
6, was provided to Applicant on March 10, 2016. He was given the opportunity to file 
objections and submit material in refutation, extenuation, or mitigation. Applicant 
received the file on March 15, 2016. Applicant did not file a Response to the FORM 
within the 30 day time allowed that expired on April 14, 2016.  
 
I received the case assignment on November 1, 2016. Based upon a review of 
the pleadings and exhibits, eligibility for access to classified information is denied. 
 
Findings of Fact 
 
Under Paragraph 1, Personal Conduct, Applicant admitted three arrests: an 
arrest and indictment for Felony Sexual Assault, against a minor, in March 2009; an 
arrest and indictment for Felony Sexual Abuse, against a minor, in June 1980; and an 
arrest and conviction for Assault with Intent to Ravish in September 1968. (Item 2.)  
 
 Applicant is 73 years old. He has worked for his employer, a government 
contractor, since April 2014. He served in the Army from 1965 to 1967 and received an 
honorable discharge. He is married. He did not list any children on his e-QIP. (Item 3.) 
 
 Under “Section 22-Police Record” on his e-QIP, Applicant disclosed that in 
September 1980 he was charged with felony “child abuse,” but was found innocent. He 
also described a September 2007 “child abuse” charge because “while swimming in our 
pool[,] Grandda[ughter] said my foot went between her legs, when she came up behind 
me.” He indicated the “charges [were] dropped by [the] court.” He did not list the 
conviction for Assault with Intent to Ravish in September 1968 on his e-QIP. (Item 3.) 
 
 Applicant’s Federal Bureau of Investigation record shows that Applicant was 
arrested in September 1968 and charged with Assault with Intent to Ravish. Applicant’s 
answer to the SOR indicated that he was sentenced to probation for one year for this 
offense. He was also arrested in June 1980 for Sexual Abuse 1st degree, but he was 
found not guilty by a jury. Police records from Applicant’s 2009 arrest show that his 
alleged victim, Applicant’s step-granddaughter, claimed that during the period February 
2006 to November 2008, Applicant sexually assaulted her by “touching her sexually and 
expos[ing] himself to her.” A grand jury indicted Applicant on this charge. Applicant pled 
not guilty. The case was dismissed in May 2010, under the condition that Applicant 
have no contact with the victim. (Item 1; Item 5.) 
 
 
 
 
 
 
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 Applicant provided no evidence concerning the quality of his job performance. He 
submitted no character references or other evidence tending to establish good 
judgment, trustworthiness, or reliability. I was unable to evaluate his credibility, 
demeanor, or character in person since he elected to have his case decided without a 
hearing. 
 
Policies 
 
When evaluating an applicant=s suitability for a security clearance, the 
administrative judge must consider the adjudicative guidelines (AG). In addition to brief 
introductory explanations for each guideline, the adjudicative guidelines list potentially 
disqualifying conditions and mitigating conditions, which are useful in evaluating an 
applicant=s eligibility for access to classified information. 
 
These guidelines are not inflexible rules of law. Instead, recognizing the 
complexities of human behavior, the administrative judge applies the guidelines in 
conjunction with the factors listed in AG ¶ 2 describing the adjudicative process. The 
administrative judge=s overarching adjudicative goal is a fair, impartial, and 
commonsense decision. According to AG & 2(c), the entire process is a conscientious 
scrutiny of a number of variables known as the Awhole-person concept.@ The 
administrative judge must consider all available, reliable information about the person, 
past and present, favorable and unfavorable, in making a decision. 
 
The protection of the national security is the paramount consideration. AG & 2(b) 
requires that A[a]ny doubt concerning personnel being considered for access to 
classified information will be resolved in favor of national security.@ In reaching this 
decision, I have drawn only those conclusions that are reasonable, logical and based on 
the evidence contained in the record.  
 
According to Directive & E3.1.14, the Government must present evidence to 
establish controverted facts alleged in the SOR. Under Directive & E3.1.15, an 
“applicant is responsible for presenting witnesses and other evidence to rebut, explain, 
extenuate, or mitigate facts admitted by the applicant or proven by Department Counsel, 
and has the ultimate burden of persuasion as to obtaining a favorable clearance 
decision.”  
 
A person who seeks access to classified information enters into a fiduciary 
relationship with the Government predicated upon trust and confidence. This 
relationship transcends normal duty hours and endures throughout off-duty hours. The 
Government reposes a high degree of trust and confidence in individuals to whom it 
grants access to classified information. Decisions include, by necessity, consideration of 
the possible risk the applicant may deliberately or inadvertently fail to protect or 
safeguard classified information. Such decisions entail a certain degree of legally 
permissible extrapolation as to potential, rather than actual, risk of compromise of 
 
 
 
 
 
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classified information. See also EO 12968, Section 3.1(b) (listing multiple prerequisites 
for access to classified or sensitive information).  
Analysis 
 
Guideline E, Personal Conduct  
 
The security concern for the Personal Conduct guideline is set out in AG ¶ 15: 
 
Conduct involving questionable judgment, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations can raise questions 
about an individual’s reliability, trustworthiness and ability to protect 
classified information. Of special interest is any failure to provide truthful 
and candid answers during the security clearance process or any other 
failure to cooperate with the security clearance process. 
 
 AG ¶ 16 describes conditions that could raise a security concern and may be 
disqualifying. The following disqualifying condition is potentially applicable: 
 
(e) personal conduct, or concealment of information about one’s conduct, 
that creates a vulnerability to exploitation, manipulation, or duress, such as 
(1) engaging in activities which, if known, may affect the person’s 
personal, professional, or community standing, or (2) while in another 
country, engaging in any activity that is illegal in that country or that is legal 
in that country but illegal in the United States and may serve as a basis for 
exploitation or pressure by the foreign security or intelligence service or 
other group. 
 
 Applicant’s conviction for Assault with Intent to Ravish in 1968, and his 
subsequent arrests for Felony Sexual Abuse and Assault, against a minor, in 1980 and 
2009 create a vulnerability to exploitation, manipulation, or duress; and affect his 
personal, professional, or community standing. This conduct raises security concerns 
under AG ¶16(e), and demonstrates questionable judgment under AG ¶ 15.  
 
AG ¶ 17 provides conditions that could mitigate security concerns. The following 
are potentially applicable under the facts of this case:  
(c) the offense is so minor, or so much time has passed, or the behavior is 
so infrequent, or it happened under such unique circumstances that it is 
unlikely to recur and does not cast doubt on the individual’s reliability, 
trustworthiness, or good judgment; 
(d) the individual has acknowledged the behavior and obtained counseling 
to change the behavior or taken other positive steps to alleviate the 
stressors, circumstances, or factors that caused untrustworthy, unreliable, 
or other inappropriate behavior, and such behavior is unlikely to recur; and  
 
 
 
 
 
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(e) the individual has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress. 
The Appeal Board explained an applicant’s responsibility for proving the 
applicability of mitigating conditions as follows:  
 
Once a concern arises regarding an Applicant’s security clearance 
eligibility, there is a strong presumption against the grant or maintenance 
of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th 
Cir. 1990), cert. denied, 499 U.S. 905 (1991). After the Government 
presents evidence raising security concerns, the burden shifts to the 
applicant to rebut or mitigate those concerns. See Directive ¶ E3.1.15. The 
standard applicable in security clearance decisions is that articulated in 
Egan, supra. “Any doubt concerning personnel being considered for 
access to classified information will be resolved in favor of the national 
security.” Directive, Enclosure 2 ¶ 2(b). (ISCR Case No. 10-04641 at 4 
(App. Bd. Sept. 24, 2013).) 
 
Applicant did not meet his burden to establish mitigation under any of these 
conditions. He did not present evidence to show how his past arrests and conviction no 
longer cast doubt on his reliability, trustworthiness, and judgment. He did not present 
documentation to show he has taken other positive steps to alleviate the stressors, 
circumstances, or factors that caused his untrustworthy, unreliable, and inappropriate 
behavior. He did not establish that he has taken positive steps to reduce or eliminate 
vulnerability to exploitation, manipulation, or duress.  
 
Whole-Person Concept 
 
Under the whole-person concept, the administrative judge must evaluate an 
applicant=s eligibility for a security clearance by considering the totality of the applicant=s 
conduct and all relevant circumstances. The administrative judge should consider the 
nine adjudicative process factors listed at AG & 2(a): 
 
(1) the nature, extent, and seriousness of the conduct; (2) the 
circumstances surrounding the conduct, to include knowledgeable 
participation; (3) the frequency and recency of the conduct; (4) the 
individual=s age and maturity at the time of the conduct; (5) the extent to 
which participation is voluntary; (6) the presence or absence of 
rehabilitation and other permanent behavioral changes; (7) the motivation 
for the conduct; (8) the potential for pressure, coercion, exploitation, or 
duress; and (9) the likelihood of continuation or recurrence.  
 
Under AG & 2(c), the ultimate determination of whether to grant eligibility for a security 
clearance must be an overall commonsense judgment based upon careful consideration 
of the guidelines and the whole-person concept.      
 
 
 
 
 
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I considered the potentially disqualifying and mitigating conditions in light of all 
facts and circumstances surrounding this case. Applicant committed a serious criminal 
offense at the age of 24, which resulted in conviction and probation for one year. This 
court action should have put him on notice that any such similar conduct would result in 
serious ramifications for him. Over the course of his life, similar allegations have 
resurfaced. He failed to present sufficient evidence of rehabilitation or other permanent 
behavioral changes to show that he would not be susceptible to pressure, coercion, 
exploitation, or duress. Overall, the record evidence leaves me with questions or 
substantial doubts as to Applicant=s eligibility and suitability for a security clearance. For 
all these reasons, I conclude Applicant failed to mitigate the security concerns arising 
under the guideline for Personal Conduct.  
 
Formal Findings 
 
 Formal findings for or against Applicant on the allegations set forth in the SOR, 
as required by ¶ E3.1.25 of Enclosure 3 of the Directive, are: 
 
Paragraph 1, Guideline E:   AGAINST APPLICANT 
 
  Subparagraph 1.a:    Against Applicant 
  Subparagraph 1.b:    Against Applicant 
  Subparagraph 1.c:    Against Applicant 
 
Conclusion 
 
In light of all of the circumstances presented by the record in this case, it is not 
clearly consistent with the national interest to grant Applicant eligibility for a security 
clearance. Eligibility for access to classified information is denied. 
 
 
                                                   
_________________ 
Jennifer I. Goldstein 
Administrative Judge